Updated: Tips for a Good Submission
So much of what we do here at the OIPC involves reviewing submissions (or representations) from parties. In my time here, I have seen some very persuasive ones. I thought some tips on what, in my view, made a persuasive submission would be helpful.
A submission contains a party’s arguments in support of their position. For public bodies or third parties, depending on the nature of the case, this often means arguments for why particular exemptions apply. For applicants, it means arguments for why information should be released and why particular exemptions do not apply. Here are some tips and things to avoid.
Tips
When drafting your submission, our office encourages parties to rely on its resource called the IPC Guide to FOIP for government institutions or the IPC Guide to LA FOIP for local authorities. These Guides have six chapters each and cover all the provisions in The Freedom of Information and Protection of Privacy Act (FOIP) and The Local Authority Freedom of Information and Protection of Privacy Act (LA FOIP). Of particular interest would in a review matter is Chapter 4: Exemptions from the Right of Access which sets out the tests and definitions for all the exemptions under Parts III of FOIP and LA FOIP. These tests reflect the precedents set by the current and former Information and Privacy Commissioners in Saskatchewan, Commissioners in other jurisdictions and court decisions from across Canada. We use these tests in our reviews. As such, our office is looking for how an exemption applies using the test in the applicable Guide so covering this in your submission improves its likely of successfully convincing the Commissioner the exemption applies.
A persuasive submission should have just enough information to support your position but not more than what is needed. It should have the following four things for each exemption relied on:
- List the exemption that has been applied.
- List the page numbers that it applies to (group pages if the records are similar).
- Reproduce the test from the Guide for that exemption.
- Lay-out your arguments for each part of the test (make sure to tie it to the information in the record).
Things to Avoid
- Avoid just stating “yes” to the test questions in the Guide. Explanation is needed.
- If citing court cases and/or orders from other jurisdictions, simply provide the URL. No hard copies are required.
- Avoid just restating the exemption or the test question as an argument. For example, stating “This information qualifies for exemption under subsection 17(1)(a) of FOIP because it is a recommendation developed by or for a government institution.”
- Avoid arguments that go beyond what is contemplated by the exemption (e.g., public interest override arguments when it’s not part of the exemption).
Things to consider:
- If providing supporting documentation (e.g., court cases or evidence) explain in the submission how it supports your position (i.e., tie it into your arguments). If a supporting document isn’t tied to anything, it won’t be persuasive.
- Ensure that your submission matches your Index of Records and the record itself (i.e., page numbers and exemptions relied on). If not, it can appear that the preparation of materials was rushed which could give the impression that so were the application of exemptions.
- Make sure you explain sufficiently how the information meets the test threshold (e.g., explain the ‘harm’ that you foresee in detail for harms based exemptions).
For more assistance on preparing your submission, Index of Records and/or the record itself, you can refer to our resources:
What to Expect During a Review with the IPC: A Resource for Public Bodies and Trustees
A Guide to Submissions
The Guide to FOIP
The Guide to LA FOIP
But I’m the Applicant – how can my submission help?
Preparing and writing a submission